Jim Walter Resources, Inc.

Plain-English summary

Jim Walter Resources challenged a citation involving a ram car used at its No. 7 Mine. One battery cell had been bypassed, reducing the battery from 120 cells and 240 volts to 119 cells and 238 volts. Judge Paul Merlin found that the change departed from the equipment's approved permissible configuration under 30 C.F.R. § 75.503, even though bypassing one cell did not create an immediate threat of injury. The citation was affirmed and the operator's contest was dismissed.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.503
• Outcome: The citation was affirmed and the operator's notice of contest was dismissed.
• Key point: A deviation from an approved permissible configuration can violate the maintenance standard even when the particular change is not immediately hazardous.

Full text (FMSHRC public release)

CCASE:
JIM RESOURCES. V. SOL (MSHA)
DDATE:
19870422
TTEXT:

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           Federal Mine Safety and Health Review Commission
                  Office of Administrative Law Judge

JIM WALTER RESOURCES, INC., ONTEST PROCEEDING
CONTESTANT
Docket No. SE 87-35-R
v. Citation No. 2811378; 12/10/86

SECRETARY OF LABOR, No. 7 Mine
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
RESPONDENT

                               DECISION

Appearances: R. Stanley Morrow, Esq., and Harold D. Rice,
Esq., Birmingham,Alabama for Contestant;
William Lawson, Esq., Office of the Solicitor,
U.S. Department of Labor, Birmingham, Alabama,
for Respondent.

Before: Judge Merlin

 This case is a notice of contest filed by Jim Walter

Resources, Inc., seeking review of a citation issued under
section 104(a) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. 801 et seq., for a violation of 30 C.F.R. 75.503.

 Citation No. 2811378, dated December 10, 1986, sets forth

the condition, or practice in question, as follows:

      "The #49 ram car located on the No. 8 section (008Ä0)
      was not maintained in a permissible condition in that
      the battery compartment, which contains 120 cells, had
      one cell "jumped out" or "bypassed" decreasing the
      nominal voltage of the batteries by 2 volts."

 30 C.F.R.      75.503, which restates section 305(a)(3) of the

Act, 30 U.S.C. 865(a)(3), provides as follows:

      "The operator of each coal mine shall maintain in
      permissible condition all electric face equipment
      required by   75.500, 75.501, 75.504 to be permissible
      which is taken into or used inby the last open crosscut
      of any such mine."

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"Permissibility" is defined in 30 C.F.R. 75.2(i) as follows:

      "Permissible" as applied to electric face equipment
      means all electrically operated equipment taken into or
      used inby the last open crosscut of an entry or a room
      of any coal mine the electrical parts of which,
      including, but not limited to, associated electrical
      equipment, components, and accessories, are designed,
      constructed, and installed, in accordance with the
      specifications of the Secretary, to assure that such
      equipment will not cause a mine explosion or mine fire,
      and the other features of which are designed and
      constructed, in accordance with the specifications of
      the Secretary, to prevent, to the greatest extent
      possible, other accidents in the use of such equipment;
      and the regulations of the Secretary or the Director of
      the Bureau of Mines in effect on March 30, 1970,
      relating to the requirements for investigation,
      testing, approval, certification, and acceptance of
      such equipment as permissible shall continue in effect
      until modified or superseded by the Secretary, except
      that the Secretary shall provide procedures, including
      where feasible, testing, approval, certification, and
      acceptance in the field by an authorized representative
      of the Secretary, to facilitate compliance by an
      operator with the requirements of   75.500 within the
      periods prescribed therein."

  The maintenance requirements for electronic face equipment

are found at 30 C.F.R. 75.506Ä1(a) and provide, in pertinent
part:

      "electronic face equipment which meets the
      requirements for permissibility set forth in    75.506
      will be considered to be in permissible condition only
      if it is maintained so as to meet the requirements for
      permissibility set forth in the Bureau of Mines
      schedule under which such electric face equipment was
      initially approved, or, if the equipment has been
      modified, it is maintained so as to meet the
      requirements of the schedule under which such
      modification was approved" (emphasis added).

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30 C.F.R. 18.15 provides the procedures in which an operator
must follow in order to modify any feature of approved or
certified equipment. That section states:

      "If an applicant desires to change any feature of
      approved equipment or a certified component, he shall
      first obtain MSHA's concurrence pursuant to the
      following procedure."

 The parties agreed to the following stipulations: (1) the

operator is the owner and the operator of the subject mine; (2)
the operator and the mine are subject to the jurisdiction of the
Federal Mine Safety and Health Act of 1977; (3) the
administrative law judge has jurisdiction of this case; (4) the
inspector who issued the subject citation was a duly authorized
representative of the Secretary; (5) a true and correct copy of
the subject citation was properly served upon the operator; (6) a
copy of the subject citation at issue in this proceeding is
authentic and may be admitted into evidence for purposes of
establishing its issuance, but not for the purpose of
establishing the truthfulness or relevancy of any statements
asserted therein; (7) the operator admits that one cell on the
battery of the ram car referred to in the subject citation was
"jumped out" or "bypassed" (Tr. 5Ä6).

 The instant matter is a notice of contest, but in order to

avoid duplicative litigation the parties agreed to the following
additional stipulations which would be relevant to a potential
penalty case: (8) the operator's size is medium; (9) imposition
of a penalty will not affect the operator's ability to continue
in the business; (10) the alleged violation was abated in good
faith; (11) the operator's history of prior violations is average
for its size; (12) injury was unlikely (Tr. 7).

 A letter dated February 27, 1987 to the Solicitor from Carol

M. Boring, Chief, Electrical Power Systems Branch of the Mine
Safety and Health Administration states, as follows:

      "This is in reply to Mr. George D. Palmer's letter
      dated February 13, 1987 and our telecon of February 26,
      1987."

      "I am Chief of the Electrical Power Systems Branch,
      Division of Electrical Safety. This branch has the
      responsibility of approving electric motor driven
      equipment for use in gassy mines, under Part 18 of
      Title 30 Code of Federal Regulations. I have reviewed
      the records for Approval No. 2GÄ2275-10. This approval
      was issued for a Jeffrey Mining Machinery Division,
      Type 404 BatteryÄPowered RAMCAR. The RAMCAR is approved
      with 120

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cells giving a total machine voltage of 240 volts." (Government
Exhibit 2).

 The facts of this case are not in dispute. The cited ram car

is a piece of electrical face equipment which transports coal
back and forth from the face to the feeder (Tr. 12). It was in
service when the inspector cited it (Tr. 14). The ram car was
originally approved as permissible by MSHA with 120 cells and a
voltage of 240 (Tr. 16, 39Ä40, 57, 124; Government Exhibit 2).
One cell on the ram car's battery had been bypassed or jumped out
(Tr. 13Ä14, 16; Stipulation 7). The cell had been bypassed with a
welded electrical connection (Tr. 54, 110, 132; Operator Exhibit
6). The effect of bypassing was to reduce the number of cells
from 120 to 119 and decrease voltage from 240 to 238 (Tr. 24, 36,
62, 124). Bypassing one cell does not create a hazard and poses
no immediate threat of injury (Tr. 64, 95; Stipulation 12).
However, when multiple cells are bypassed, the temperature of the
battery increases and at some point, heat could cause other cells
to short out and create arcing or sparking (Tr. 67, 72, 74,
114Ä117).

 I conclude a violation existed. The terms on which the ram

car was initially approved as permissible are explicit: 120 cells
and 240 volts. Bypassing is a deviation from the approved wiring
diagram that cannot be allowed because there is no provision for
it. As suggested at the hearing, it may be that through a field
change modification submitted to MSHA, the operator can obtain
permission to bypass a cell, but that inquiry is beyond the scope
of these proceedings (Tr. 17). In Mesa v. Amoco Steel
Corporation, (Docket No. HOPE 76X487ÄP) dated May 9, 1977
(unpublished) Administrative Law Judge Broderick concluded:

      "bridging cells in a battery-powered ram car
      used as face equipment substantially alters the
      characteristics of the equipment and therefore destroys
      its permissibility. I conclude that bridging cells in
      the battery compartment is a violation of 30 C.F.R.
      75.503."

 I agree with Judge Broderick and follow his decision.
 The operator's argument that the battery can be separated

from the ram car for purposes of permissibility, cannot be
accepted. As all witnesses agreed, the battery is an integral
part of the ram car (Tr. 16Ä17, 76, 78, 124). Further, the
operator's assertion that the requirement of 240 volts can be
disregarded because voltage decreases to 204 during the shift,
also must be rejected. If the ram car begins the shift with less
than 240 volts, it will decrease below 204 during the shift (Tr.
92Ä93). I accept the electrical inspector's testimony that during
the shift the voltage should not go below 204 (Tr. 90Ä91).

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Admittedly, bypassing one cell is not serious. But gravity is not
the test of whether a violation exists. Rather, it is one of the
six criteria to be evaluated in determining the amount of civil
penalty to be assessed. Care must be taken not to confuse the
various concepts encountered when interpreting the Act. Indeed,
acceptance of the operator's position would take enforcement of
the Act down an uncertain road where a violation would originate
at some imperceptible and undefined point. Thus, if bypassing one
cell is allowed, what of two, six, ten, or twenty? Conceptually,
and practically, such an approach cannot work.

 The post-hearing briefs of the parties have been reviewed.

To the extent they are inconsistent with this decision, they are
rejected.

 In light of the foregoing, it is ORDERED that the citation

be AFFIRMED and that the operator's notice of contest be
DISMISSED.

                                Paul Merlin
                                Chief Administrative Law Judge